Ryan v. Ryan

CIRILLO, President Judge,

dissenting.

I respectfully dissent from both the majority’s disposition of Mrs. Ryan’s appeal and its disposition of the cross-appeal filed by Mr. Ryan.

The majority states that it will not decide whether Mrs. Ryan has properly preserved the issue of her entitlement to dividends accruing past the date of the original master’s hearing in 1984 because of its disposition of Mr. Ryan’s cross-appeal. With respect to Mr. Ryan’s cross-appeal, the majority finds that the trial court erred in ordering an in-kind distribution of Jefsaba stock to Mrs. Ryan and remands this case for a valuation of Mr. Ryan’s stock and a distribution of Mrs. Ryan’s share of that value. The majority states that on remand Mrs. Ryan may seek leave of the trial court to except nunc pro tunc on the issue of her entitlement to the dividends accruing after 1984. See Pa.R. C.P. 1920.55. If the trial court refuses to take testimony as to those dividends accruing since mid-1984 and therefore refuses to distribute a portion of those dividends to Mrs. Ryan, and if Mrs. Ryan again appeals that determination, then the majority would decide the waiver issue.

Because I believe that the trial court did not err in ordering an in-kind distribution of Jefsaba stock to Mrs. Ryan, I find it necessary to address whether Mrs. Ryan has *335waived her right to challenge the trial court’s conclusion that she was not entitled to any of Mr. Ryan’s income from Jefsaba from 1984 through the date of the master’s hearing, July 8, 1987. For the foregoing reasons I would find that by failing to file exceptions to the master’s report Mrs. Ryan has waived her right to contest the trial court’s conclusion that she was only entitled to 50% of the income from Jefsaba for the years 1982-1984.

The master found that Mrs. Ryan was entitled to 25% of Mr. Ryan’s income from Jefsaba for the years 1982-1984. The trial court modified the master’s recommendation by stating that Mrs. Ryan was entitled to 50% of the income from Jefsaba for the years 1982-1984. The trial court, like the master, denied Mrs. Ryan any distribution for the years following 1984. Thus, while the trial court did, in fact, modify the report of the master on the issue of dividends, this modification related solely to the percentage of income Mrs. Ryan would be entitled to for the years 1982-1984. The trial court did not alter the master’s finding that Mrs. Ryan was not entitled to any income for 1984 through July 8, 1987.

In Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986), we held

No exceptions need be filed to preserve for appeal issues which claim the trial court erred when in response to the opposing party’s exceptions, it entered a final decree which altered the terms of the master’s report and proposed order.

Id., 357 Pa.Superior Ct. at 169, 515 A.2d at 918. However, we also stated in Benson that Pa.R.C.P. 1920.551

*336requires a party who is dissatisfied with a master’s report to file exceptions to the report, or waive any such objections. On the other hand, logic dictates that a party who is satisfied with the report need not except to it. When the trial court alters the terms of the report in response to the opposing party’s exceptions, Rule 1920.55(c) provides no motions for post-trial relief may be made. Accordingly, the only occasion to raise objections to this final decree is through a direct appeal, and any issues which claim the court’s ruling was erroneous are preserved because they are raised at the first available opportunity.

Benson, 357 Pa.Super. at 170, 515 A.2d at 919.

I believe that the reasoning in support of our decision in Benson buttresses my position that Mrs. Ryan waived her rights by not filing exceptions to the master’s report. If Mrs. Ryan was satisfied with the master’s report then she would have had no reason to except to it. Mrs. Ryan, however, was apparently not satisfied with the report be-, cause she now argues that the trial court erred when it concluded that she was only entitled to income from Jefsaba for the years following 1984. Both the master and the trial court stated that Mrs. Ryan was not entitled to income for 1984 through July 8, 1987. If Mrs. Ryan was dissatisfied with the master’s finding that she was only entitled to receive dividends for the two year period, she should have filed an exception to the master’s report.2 I would find that Mrs. Ryan has failed to preserve her issue for appeal.

*337In connection with Mr. Ryan’s appeal,3 the majority believes the trial court ordered an in-kind distribution of the stock because the trial court interpreted Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984) as mandating an in-kind distribution over the remedy of a “buy-out.” While I agree with the majority that the trial court read Barletta too broadly, I do not believe the trial court abused its discretion by ordering the in-kind distribution. Barletta does not, as the majority correctly notes, require an in-kind distribution in every case, but merely states that “prior to a court making or approving a buy-out remedy, it is required to make specific findings as to why a division of the property cannot be effectuated.” Barletta, 506 Pa. at 409, 485 A.2d at 754-55; see also Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986). Therefore, it is clear that Barletta permits a “buy-out” in certain situations.

My disagreement with the majority lies with its belief that “this case presents a situation where a ‘buy-out’ remedy is warranted,” and its conclusion that by ordering an in-kind distribution the trial court committed an abuse of discretion. A trial court is permitted to exercise its discretion in fashioning the equitable distribution of marital property and we will not disturb the decision of the trial court absent an abuse of discretion. Ganong v. Ganong, 355 Pa.Super. 483, 490, 513 A.2d 1024, 1028 (1986); see also Benson, supra. “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). “An abuse of discretion has *338been defined as ‘not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Id., 339 Pa.Superior Ct. at 190 n. 2, 488 A.2d at 615 n. 2, citing Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976). Moreover, as an appellate court we may affirm the decision of the trial court on any ground regardless of whether the reasons given by the trial court are incorrect. Coatesville Development Company v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 338, 542 A.2d 1380, 1384 (1988).

As I noted above, I agree with the majority’s finding that the trial court misinterpreted Barletta as requiring an in-kind distribution. The trial court, however, offered additional support for its decision to distribute the stock in-kind. The Honorable Nicholas A. Cipriani stated in a supplemental opinion and order dated April 8, 1988:

Aside from Barletta, our decision to order a physical division, rather than a “buy-out,” was premised on the unavoidable difficulty in placing a proper valuation on the closely held stock. In seeking reconsideration, counsel for the Husband maintains that the Court should calculate the worth of the Holiday Inn by utilizing certain figures that were presented by the Husband’s accountant (Alvin Rosenberg) and by an appraiser (George Sengpiel) at the time of their testimony in 1984. However, this is now 1988, and it would clearly be inappropriate to use figures that are so outdated for purposes of ascertaining current market value.
As noted by the Superior Court in Sergi v. Sergi, [351 Pa.Super. 588], 506 A.2d 928, 932 (Pa.Super.1986), “equitable results will most likely flow from providing the court with the most recent information available.” Therefore, if we went the route of ordering a “buy-out” of the Wife’s interest in the Jefsaba shares, it would be necessary for us to elicit a new comprehensive appraisal, *339based on current information as to corporate earnings and real estate values. This would obviously require the expenditure of additional time in a case that is already five years old. Moreover, we suspect that the figures produced by any appraisal would still be disputed, given the intrinsic difficulties in evaluating closely held stock. Consequently, a physical division of the shares is clearly preferable in this situation, both because it is more likely to produce an equitable result and because it would avoid further delay.

Thus, I believe that the reasoning offered by the trial court, notwithstanding its misinterpretation of Barletta, is sufficient to support its decision to order an in-kind distribution of the Jefsaba stock.

Moreover, if section 401(d) was to be held retroactive and applied to resolve Mr. Ryan’s appeal, I would continue to remain with my affirmance of the trial court’s decision to order an in-kind distribution. Section 401(d) in pertinent part now states:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in-kind or otherwise, the marital property between the parties ... in such proportions and in such manner as the court deems just.

23 P.S. § 401(d) (emphasis added) (as amended, February 12, 1988, effective immediately.) Here, the trial court distributed the property in-kind and in such a manner as it deemed just. Accordingly, I would find that the trial court committed no abuse of discretion and would affirm the trial court’s decision to physically divide the shares of stock between Mr. and Mrs. Ryan.

. Pa.R.C.P. 1920.55 states:

(a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. ■ Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.
*336(b) If no exceptions are filed to the master’s report within the ten-day period, the court shall review the report and if approved shall enter a final decree.
(c) If exceptions are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No Motion for Post-Trial Relief may be filed to the final decree.

. Both Mr. and Mrs. Ryan filed petitions for reconsideration. In her petition, Mrs. Ryan raised the issue' now before us on appeal. In a supplemental opinion dated April 8, 1988, Judge Cipriani denied both petitions and stated that because Mrs. Ryan filed no exceptions to the master's report, she had no standing to pursue the issue through a petition for reconsideration.

. In a footnote in its opinion, the majority notes that Mr. Ryan requested this court to apply the 1988 amendment to section 401(d) of the Divorce Code in resolving his appeal. The majority states: “Because of our resolution of this issue under Barletta and its progeny, we find it unnecessary to pass on the retroactivity of this amendment.” Apparently, the majority did not reach the retroactivity issue because it concluded that under Barletta this case warranted the buy-out method of distribution. My interpretation of Barletta likewise does not necessitate deciding the retroactivity issue. Under Barletta I conclude that the trial court did not abuse its discretion in ordering the in kind distribution of the stock. Since under amended section 401(d) I would reach the same conclusion, it is unnecessary for me to address the retroactivity issue.